ENFORCEMENT:

Driller fires back at ex-EPA regional administrator

Range Resources Corp. is firing back at the former U.S. EPA official who continues to accuse it of contaminating a drinking water well outside Fort Worth, Texas.

The company's top lawyer has sent a letter to Al Armendariz demanding that he stop saying the company's gas ended up in the water well of landowner Steve Lipsky.

"You have chosen to publicly make false comments about Range and we must insist that you cease from making further false and disparaging comments against Range," David Poole wrote in a Tuesday letter to Armendariz, who now works for the Sierra Club in Texas.

Armendariz did not return a message left on his phone seeking comment.

Range has demonstrated that it will go after those who cross it in the case. Range filed a $3 million countersuit against Lipsky, alleging he and a consultant conspired to persuade EPA to intervene. Range persuaded the judge to rule the two collaborated to produce a "deceptive video" about Lipsky's wells.

At the annual conference of the Society of Environmental Journalists in Lubbock, Texas, last week, Armendariz renewed his charge against Range and said it was his decision to drop the case earlier this year (EnergyWire, Oct. 22).

"I've not seen, and when I withdrew our enforcement action I didn't see, anything to the contrary," he said in response to a question about the case.

Armendariz brought the high-profile case in December 2010 as the Dallas-based director for EPA's Region 6, which includes Texas and surrounding states. He resigned about a month after the case was dropped in late March.

He charged that Range had allowed gas from its wells to leak into two homes in Parker County in the Fort Worth suburbs, violating the Safe Drinking Water Act (SDWA). He ordered the Houston-based company to fix the problem and supply water to the families.

His emergency order also accused the state oil and gas officials at the Texas Railroad Commission of failing to protect their residents.

Range denied the accusations, and state oil and gas officials at the Texas Railroad Commission backed the company.

The case went to federal court, where the agency was represented by Justice Department lawyers. An element of the case went to the 5th U.S. Circuit Court of Appeals, based in New Orleans.

In dropping the case, EPA and the Justice Department said government officials wanted to shift away from litigation to a "joint effort" involving more testing. As part of the settlement, Range agreed to do much of the testing it would have been required to do under the emergency order.

Weeks later, Sen. James Inhofe (R-Okla.) circulated a 2-year-old video of remarks Armendariz had made at a town hall meeting. In it, Armendariz compared his strategy of making examples of violators to Roman conquerors' strategy to "crucify" random villagers.

Armendariz apologized for the comments. He resigned within a week.

In Lubbock, Armendariz said more explicitly than he had previously that he made the decision to drop the case. But Poole said Armendariz's higher-ups in Washington chose to overrule him and withdraw his charge.

"We were very pleased that when the EPA Headquarters eventually reviewed this matter, they relied on facts and science, which directly [led] to the withdrawal of your order shortly before your resignation from EPA Region 6," Poole wrote.

There are also those who say it was not a decision on the merits, so much as legal strategy.

Some have linked the withdrawal to EPA's loss in the case Sackett v. EPA, in which the Supreme Court ruled property owners had the right to have administrative orders reviewed promptly by a judge. The ruling threw into question the way EPA has pursued enforcement cases for years, and the dismissal was viewed in some circles as a way for the agency to head off similar scrutiny of the SDWA.

"Because of Sackett, EPA withdrew its substantial endangerment order and negotiated a dismissal of the Range Resources SDWA case," Mark McPherson, of Texas-based McPherson Law Firm, said in a May conference call, according to Superfund Report. The American Law Institute-Continuing Legal Education call was titled, "EPA Enforcement Collides with APA Due Process: From Sackett to Range Resources."

Poole also cited two documents that he said cast doubt on Armendariz's assertions.

One of the documents, sent 19 days before Armendariz's order, is a note from a lab that evaluated samples from the well. The company's co-founder noted that it was essential to "evaluate the potential for other sources."

The other is an email from an EPA scientist, 10 days before the order, saying that although Range's gas and the gas in the water well were "similar," it was "not conclusive evidence because of the limited data set."

Range spokesman Matt Pitzarella said no follow-up tests were done.

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